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NEW  MEXICO 
CONSTITUTIONAL  PROVISIONS 


•ANCROFT 
LIIRARY 


BANCROFT 
LIBRARY 


THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 


Digitized  by  the  Internet  Archive 

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Aon* 


DEPARTMENT 


OF 


TERRITORIAL  ENGINEER 


SANTA  FE,  NEW  MEXICO. 


CONSTITUTIONAL  PROVISIONS 


AND 


IRRIGATION  LAW 


November,  1910. 


SANTA   FE,    N.  M. 
New  Mexican  P»iNTiNG  Company 

1910. 


u 


DEPARTMENT" 


OF   / 


TERRITORIAL  ENGINEER 


SANTA  FE,  NEW  MEXICO. 


CONSTITUTIONAL  PROVISIONS 


AND 


IRRIGATION  LAW. 


A 


November,  1910. 


SANTA   FE,    N.  M. 

New  Mexican  Printing  Company 

1910, 


l06(p6'S 


MA 


Constitutional  Provisions. 


IRRIGATION    AND  WATER    RIGHTS. 

Section  1.  All  existing  rights  to  the  use  of  any  waters  in  this 
state  for  any  useful  or  beneficial  purposes  are  hereby  recognized  and 
confirmed. 

Sec.  2.  The  unappropriated  waters  of  every  natural  stream,  per- 
rennial  or  torrential,  within  the  State  of  New  Mexico,  is  hereby  de- 
clared to  belong  to  the  public  and  to  be  subject  to  appropriation  for 
beneficial  use.  In  accordance  with  the  law  of  the  State,  priority  of 
appropriation  shall  give  the  better  right. 

Sec.  3.  Beneficial  use  shall  be  the  basis,  the  measure  and  the  limit 
of  the  right  to  the  use  of  water. 

Sec.  4.  The  Legislature  is  authorized  to  provide  by  law  for  the 
organization  and  operation  of  drainage  district  and  systems. 


Irrigation  Laws. 


CHAPTER  49. 


An  Act  to  Conserve  and  Regulate  the  Use  and  Distribution  of  tlie 
Waters  of  New  Mexico;  to  Create  the  Office  of  Territorial  En- 
gineer; to  Create  a  Board  of  Water  Commissioners,  and  for  other 
Purposes.     H.  B.  No.  120;   Approved   March  19,  1907. 

Be  it  enacted  by  the  Legislative  Assembly  of  the  Territory  of  New 
Mexico: 

Section  1.  All  natural,  waters  flowing  in  streams  and  water  courses, 
whether  such  be  perennial,  or  torrential,  within  the  limits  of  the 
Territory  of  New  Mexico,  belong  to  the  public  and  are  subject  to  ap- 
propriation for  beneficial  use. 

Sec.  2.  Beneficial  use  shall  be  the  basis,  the  measure  and  the  limit 
of  the  right  to  the  use  of  water,  and  all  waters  appropriated  for  irri- 
gation purposes,  except  as  otherwise  provided  by  written  contract 
between  the  owner  of  the  land  and  the  owner  of  any  ditch,  reservoir 
or  other  works  for  the  storage  or  conveyance  of  water,  shall  be  ap- 
purtenant to  specified  lands  owned  by  the  persons,  firm  or  corpora- 
tion having  the  right  to  use  the  water,  so  long  as  the  \yater  can 
be  beneficially  used  thereon,  or  until  the  severance  of  such  right 
from  the  land  in  the  manner  hereinafter  provided.  Priority  in  time 
shall  give  the  better  right.  In  all  cases  of  claims  to  the  use  of  water 
initiated  prior  to  the  passage  of  this  act,  the  right  shall  relate  back 
to  the  initiation  of  the  claim,  upon  the.  diligent  prosecution  to  com- 
pletion of  the  necessary  surveys,  and  construction  for  the  application  of 
the  water  to  a  benefieial  use.  All  claims  to  the  use  of  water  initi- 
ated after  the  passage  of  this  act  shall  relate  back  to  the  date  of  the 
receipt  of  an  application  therefor  in  the  office  of  the  territorial  en- 
gineer, subject  to  compliance  with  the  provisions  of  this  act,  and 
the  rules  and  regulations  established  thereunder. 

Sec.  3.  The  United  States,  the  Territory  of  of  New  Mexico,  or  any 
person,  firm,  association  or  corporation,  may  exercise  the  right  of 
eminent  domain,  to  take  and  acquire  land  right-of-way  for  the  con- 
struction, maintenance  and  operation  of  reservoirs,  canals,  ditches, 
flumes,  acqueducts,  pipe  lines  or  other  works  for  the  storage  or  con- 
veyance of  water  for  beneficial  uses,  including  the  right  to  enlarge 
existing  structures,  and  to  use  the  same  in  common  with  the  for- 
mer owner;  a,ny  such  right-of-way  for  canal,  ditch,  pipe  line,  or 
other  means  for  the   conveyance   of  water  shall  in  all   cases  be   so 


6  IRRIGATION    LAWS. 

located,  as  to  do  the  least  damage  to  private  or  public  property  con- 
sistent with  proper  use  and  economical  construction.  Such  land  and 
right-of-way  shall  be  acquired  in  the  manner  provided  by  law  for  the 
condemnation  and  taking  of  private  property  in  the  Territory  of  New 
Mexico  for  railroad,  telegraph,  telephone  and  other  public  uses  and 
purposes.  The  engineers  and  surveyors  of  the  United  States,  the 
Territory  and  of  any  person,  firm  or  corporation  shall  have  the  right 
to  enter  upon  the  lands  and  waters  of  the  Territory  and  of  private 
persons  and  of  private  and  public  corporations,  for  the  purpose  of 
making  hydrographic  surveys  and  examinations  and  surveys  neces- 
sary for  selecting  and  locating  suitable  sites  and  routes  for  reservoirs, 
canals,  pipe  lines  and  other  water  works,  subject  to  responsibility  for 
any  damage  done   to   such   property,   in  making   such   surveys. 

Sec.  4.  There  shall  be  a  territorial  engineer,  who  shall  be  a  tech- 
nically qualified  and  experienced  hydraulic  engineer,  and  who  shall 
be  appointed  by  the  governor  and  such  appointment  confirmed  by 
the  council.  He  shall  hold  office  for  the  term  of  four  years  from 
and  after  his  appointment,  or  until  his  successor  shall  have  been 
appointed,  and  shall  have  qualified.  He  shall  be  subject  to  removal 
only  for  cause.  He  shall  have  general  supervision  of  the  waters  of 
the  Territory  and  of  the  measurement,  appropriation,  and  distribu- 
tion thereof,  and  such  other  duties  as  are  required  by  this  act.  He 
shall  receive  a  salary  of  two  thousand  dollars  per  annum  and  actual 
necessary  traveling  expenses  while  away  from  his  office  in  the  dis- 
charge of  official  duties.  The  office  of  the  territorial  engineer  shall 
be  located  at  the  seat  of  government.  He  shall  not  engage  in  any 
private  practice  except  as  consulting  engineer:  Provided,  however, 
That  he  may  establish  a  schedule  of  fees  for  drawing  plans,  prepar- 
ing specifications  and  giving  expert  advice  and  other  services  as  con- 
sulting engineer,  and  charge  such  fees  for  services,  making  a  report 
to  the  auditor  of  Territory  of  all  fees  and  compensation  paid  to  him 
for  such  services:  Provided,  further.  That  when  the  total  amount 
collected  for  such  services  as  consulting  engineer  as  hereinabove 
defined  shall  have  amounted  to  the  sum  of  two  thousand  dollars,  that 
any  fees  collected  thereafter,  during  any  one  year,  shall  be  turned 
into  the  treasury  of  the  Territory. 

Sec.  5.  The  territorial  engineer  may  employ  assistants  and  pur- 
chase materials  and  supplies  for  the  proper  conduct  and  mainten- 
ance of  his  office  and  department,  in  pursuance  of  appropriations  as 
made  from  time  to  time  for  such  purposes.  The  salaries  and  ex- 
penses of  the  office  of  the  territorial  engineer  shall  be  paid  at  the 
same  time  and  in  the  same  manner  as  those  of  other  officers  of  the 
Territory. 

Sec.  6.  Before  entering  upon  the  duties  of  his  office  the  territorial 
engineer  shall  take  the  oath  as  prescribed  by  law  for  territorial  oflB- 
cials.  He  shall  file  with  the  Secretary  of  the  Territory,  a  bond,  in 
the  penal  sum  of  ten  thousand  ($10,000)  dollars,  to  be  approved  by 
the  attorney  general,  and  conditioned  upon  the  faithful  discharge  of 
his  duties,  and  for  delivery  to  his  successor  of  all  property  belong- 
ing to  the  public  then  in  his  possession  or  control. 

Sec.  7.  All  claims  for  services  rendered,  expenses  incurred,  or 
materials  or  supplies  furnished  under  the  direction  of  the  territorial 


IRRIGATION   LAWS.  i 

engineer  and  which  are  payable  from  the  funds  appropriated  for  the 
prosecution  of  the  work  under  his  direction  and  supervision,  shall  be 
approved  by  the  territorial  engineer  and  properly  vouchered  and  filed 
in  the  office  of  the  territorial  auditor,  who  shall,  if  he  finds  the  same 
to  have  been  incurred  in  accordance  with  law,  audit  and  allow  such 
claims  and  issue  his  warrant  on  the  treasurer  in  payment  thereof. 

Sec.  8.  The  territorial  engineer  shall  prepare  and  deliver  to  the 
governor,  on  or  before  November  30th  of  the  year  preceding  the  regu- 
lar session  of  the  legislature,  and  at  other  times  when  required  by 
the  governor,  a  full  report  of  the  work  of  his  office,  including  a  de- 
tailed statement  of  the  expenditures  thereof  to  and  including  October 
31st,  with  such  recommendations  for  legislation  and  appropriation  as 
he  deem  advisable. 

Sec.  9.  The  territorial  engineer  shall  receive  the  following  fees, 
to  be  collected  in  advance  and  to  be  paid  by  him  into  the  hydrographic 
survey  fund  of  the  territorial  treasury  herein  provided  for  upon 
the  last  day  of  March,  June,  September  and  December  of  each  year. 

(a)  For  filing  and  examining  an  application  for  permit  to  appro- 
priate water,  map,  and  field  notes  of  the  same,  which  shall  include  the 
filing  of  proofs  of  publication  and  all  other  papers  relating  to  the  ap- 
plication up  to  the  recording  of  the  permit  to  appropriate  water, 
five  dollars. 

(b)  For  recording  any  permit,  certificate  of  construction  or  license 
issued  or  any  other  water  right  instrument,  one  dollar  for  the  first 
hundred  words,  and  fifteen  cents  for  each  additional  hundred  words 
or  fraction  thereof. 

(c)  For  filing  any  other  paper  necessarily  forming  a  part  of  the 
permanent  record  of  the  water  right  application,  permit,  or  license, 
fifty  cents. 

(d)  For  issuing  certificates  of  construction,  or  license  to  appro- 
priate water,  one  dollar  each. 

(e)  For  making  copy  of  any  document  recorded  or  filed  in  his 
office,  fifteen  cents  for  each  hundred  words  or  fraction  thereof. 

(f)  For  blue  print  copy  of  any  map  or  drawing,  ten  cents  per 
square  foot  or  fraction  thereof.  For  other  copies  of  drawings,  actual 
cost  of  the  work. 

(g)  For  certifying  to  such  copies,  one  dollar  for  each  certificate, 
(h)     For  examining,  in  connection  with  water   right  applications, 

plans  and  specifications  for  any  dam,  not  exceeding  ten  feet  in  ex- 
treme height  from  the  foundation,  ten  dollars;  for  a  dam  higher 
than  ten  feet  and  not  exceeding  thirty  feet,  twenty  dollars;  for  a 
dam  higher  than  thirty  feet  and  not  exceeding  fifty  feet,  thirty 
dollars;  for  a  dam  higher  than  fifty  feet,  fifty  dollars;  or  for  a  canal 
or  other  water  conduit  of  an  estimated  capacity  exceeding  fifty  and 
not  more  than  one  hundred  cubic  feet  per  sepond,  twenty  dollars; 
for  an  estimated  capacity  exceeding  one  hundred  cubic  feet  per  sec- 
ond, thirty  dollars. 

(i)  For  inspecting  dam  sites  and  construction  work  when  required 
by  law,  ten  dollars  per  day  and  actual  and  necessary  traveling  ex- 
penses. The  fees  for  any  inspection  deemed  necessary  by  the  terri- 
torial engineer  and  not  paid  on  demand  shall  be  a  lien  on  any  land 


8  IRRIGATION   LAWS. 

or  other  property  of  the  owner  of  the  works,  and  may  be  recovered 
by  the  territorial  engineer  in  any  court  of  competent  jurisdiction. 

(j)  For  rating  ditches  or  inspecting  plans  and  specifications  of 
works  for  the  diversion,  storage  and  carriage  of  water,  at  the  request 
of  private  parties,  not  in  connection  with  an  application  for  right 
to  appropriate  water,  actual  cost  and  expenses;  and  the  terri- 
torial engineer  shall  attach  his  approval  to  such  plans  and  specifica- 
tions if  found  satisfactory. 

(k)  For  such  other  work  as  may  be  required  of  his  office,  such 
reasonable  fees  as  the  extent  and  character  of  the  work  shall  justify. 

(1)  In  ascertaining  actual  cost  of  any  work,  as  the  term  is  used 
in  this  section,  the  salary  of  any  salaried  officer  for  the  time  em- 
ployed shall  be  included. 

Sec.  10.  The  records  of  the  office  of  the  territorial  engineer  are 
public  records,  shall  remain  on  file  in  his  oflfice,  and  shall  be  open  to 
the  inspection  of  the  public  at  all  times  during  business  hours.  Such 
records  shall  show  all  applications  filed,  with  date  of  filing,  and  shall 
show  in  full  all  permits,  certificates  of  completion  of  construction, 
and  licenses  issued,  together  with  all  action  thereon,  and  all  action 
or  decisions  of  the  territorial  engineer  affecting  any  rights  or  claims 
to  appropriate  water.  Certified  copies  of  any  records  or  papers  on 
file  in  the  office  of  the  territorial  engineer  shall  be  evidence  equally 
with  the  originals  thereof;  and  when  introduced  as  evidence  shall 
be  held  as  of  the  same  validity  as  the  originals. 

Sec.  11.  The  territorial  engineer,  subject  to  the  approval  of  the 
board  of  water  commissioners  created  by  this  act,  shall  make  all  neces- 
sary rules  and  regulations  to  carry  into  effect  the  duties  devolved  upon 
his  office. 

Sec.  12.  The  territorial  engineer  shall  have  the  supervision  of  the 
apportionment  of  water  in  this  Territory  according  to  the  licenses 
issued  by  him  anxi  his  predecessors  and  the  adjudications  of  the 
courts.. 

Sec.  13.  The  territorial  engineer  shall,  from  time  to  time,  as  may 
be  necessary  for  the  economical  and  satisfactory  apportionment  of 
the  water,  divide  the  Territory  in  conformity  with  drainage  areas, 
into  water  districts  to  be  designated  by  names,  and  to  comprise  as 
far  as  possible  one  or  more  distinct  streams  systems  in  each  district. 
The  districts  may  be  changed  from  time  to  time  as  may,  in  his 
opinion,  be  necessary  for  the  economical  and  satisfactory  apportion- 
ment of  water. 

Sec.  14.  The  territorial  engineer  shall  upon  the  written  applica- 
tion of  a  majority  of  the  water  users  of  any  district  in  this  Territory, 
appoint  a  water  master  for  such  district  in  the  Territory,  who  may, 
for  cause,  be  removed  by  the  territorial  engineer,  and  shall  be  re- 
moved upon  a  petition  of  a  majority  of  the  water  users  of  said  dis- 
trict. The  water  master  shall  have  immediate  charge  of  the  appor- 
tionment of  waters  in  his  district  under  the  general  supervision  of 
the  territorial  engineer,  and  he  shall  so  appropriate,  regulate  and 
control  the  waters  of  the  district  as  will  prevent  waste.  The  terri- 
torial engineer  may,  if  in  his  opinion  the  public  safety  or  interests 
of  water  users  in  any   district  in   the   Territory  require  it,   appoint 


IRRIGATION    LAWS.  \) 

such  water  master  for  temporary  or  permanent  service  in  such  dis- 
trict, in  the  absence  of  the  application  above  provided  for. 

Sec.  15.  Any  person  may  appeal  from'  the  acts  or  decisions  of 
the  water  master,  to  the  territorial  engineer,  who  shall  promptly 
and  at  a  state  time  and  place,  to  be  fixed  by  him,  upon  due  notice  to 
the  parties,  hear  and  determine  the  matter  in  dispute,  and  his  de- 
cision shall  be  final,  unless  an  appeal  is  taken  to  the  board  of  water 
commissioners  as  provided  in  this  act. 

Sec.  16.  The  water  master  shall  be  allowed  pay  at  a  rate  fixed  by 
the  territorial  engineer,  not  exceeding  four  dollars  per  day  and  actual 
and  necessary  expenses  in  the  performance  of  his  duties.  He  may 
employ  assistants  in  case  of  emergency,  upon  the  specific  authority  of 
and  at  rates  of  pay  as  authorized  by  the  territorial  engineer,  such 
employment  to  continue  only  during  the  existency  of  the  emergency. 
The  water  master  and  the  assistants  employed  by  him  shall  be  paid 
by  the  county,  upon  accounts  approved  by  the  territorial  engineer. 
If  the  district  is  in  more  than  one  county,  each  county  shall  pay 
its  proportionate  part  of  each  account  rendered.  The  accounts  of 
the  water  master  shall  in  all  cases  specify  the  distribution  of  the 
amounts  charged  based  upon  the  quantity  of  water  received  by  each 
water  user  by  each  ditch  owner  in  proportion  to  the  total  quantities 
delivered  to  all  and  shall  show  the  charges  to  be  allotted  to  each 
water  user  and  ditch  owner.  The  amounts  paid  by  the  counties  shall 
be  a  lien  upon  the  property  of  the  water  users  and  ditch  owners,  in 
accordance  with  the  distribution  thereof,  as  shown  by  the  accounts 
of  the  water  master,  and  shall  be  collected  in  the  manner  provided 
by  law  for  the  collection  of  taxes. 

Sec.  17.  Each  water  master  shall  report  to  the  territorial  engineer, 
as  often  as  may  be  deemed  necessary  by  the  engineer  as  to  the 
amount  of  water  needed  to  supply  the  requirements  of  his  districts 
the  amount  available,  the  works  which  are  without  their  proper 
supply,  the  supply  required  during  the  period  preceding  his  next  regu- 
lar report,  and  such  other  information  as  the  engineer  may  require. 
These  reports  shall,  at  the  end  of  each  irrigation  season,  be  filed 
in  the  office  of  the  territorial  engineer.  The  territorial  engineer  shall 
give  directions  for  correcting  any  errors  of  apportionments  that 
may  be  shown  by  such  reports. 

Sec.  18.  Whenever  requested  so  to  do  by  any  of  the  boards  of  com- 
m.issioners  of  any  of  the  counties  of  the  Territory,  it  is  hereby  made 
the  duty  of  the  territorial  engineer,  either  himself,  or  by  any  author- 
ized assistant  engineer,  to  co-operate  with  the  said  county  commis- 
sioners in  the  engineering  work  required  to  lay  out,  establish  and  con- 
struct any  drain  to  be  used  by  any  county  or  counties,  or  portions  of 
the  same,  for  the  purpose  of  diverting  flood  waters,  lakes,  water 
courses,  and  in  general  to  aid  and  assist  the  counties  of  this  Terri- 
tory or  other  authorized  officers,  in  making  preliminary  surveys  and 
establishing  systems  of  drainage,  or  any  other  engineering  work. 

Sec.  19.  The  territorial  engineer  shall  make  hydrographic  surveys 
and  investigation  of  each  stream  system  and  source  of  water  sup- 
ply in  the  Territory,  beginning  with  those  most  used  for  irrigation, 
and  obtaining  and  recording  all  available  data  for  the  determination, 
development  and  adjudication    of  water  supply  of  the  Territory;    in- 


10  IRRIGATION   LAWS. 

eluding  the  location  and  survey  of  suitable  sites  for  dams  and  reser- 
voirs and  the  determination  of  the  approximate  water  supply,  capa- 
city and  cost  of  each.  He  shall  be  authorized  to  co-operate  with  the 
agencies  of  the  United  States  engaged  in  similar  surveys  and  inves- 
tigations, and  in  the  construction,  of  works  for  the  development  and 
use  of  the  water  supply  of  the  Territory,  expending  for  such  pur- 
poses any  money  available  for  the  work  of  his  office,  and  may  accept 
and  use  in  connection  with  the  operations  of  his  department  the  re- 
sults of  the  agencies  of  the  United  States. 

Sec.  20.  Upon  the  completion  of  such  hydrographic  survey  of  any 
stream  system,  the  territorial  engineer  shall  deliver  a  copy  of  so 
much  thereof  as  may  be  necessary  for  the  determination  of  all  rights 
to  the  use  of  the  waters  of  such  system  together  with  all  other  data 
in  his  possession  necessary  for  such  determination,"  to  the  attorney 
general  of  the  Territory  who  shall,  at  the.  request  of  the  territorial 
engineer,  enter  suit  on  behalf  of  the  Territory  for  the  determination 
of  all  rights  to  the  use  of  such  water,  in  order  that  the  amount  of 
unappropriated  water  subject  to  disposition  by  the  Territory  under 
the  terms  of  this  act  may  become  known,  and  shall  diligently  prose- 
cute the  same  to  a  final  adjudication:  Provided,  That  if  suit  for  the 
adjudication  of  such  rights  shall  have  been  begun  by  private  parties, 
the  attorney  general  shall  not  be  required  to  bring  suit:  Provided, 
however,  That  the  attorney  general  shall  intervene  in  any  suit  for 
the  adjudication  of  rights  to  the  use  of  water,  on  behalf  of  the  Terri- 
tory, if  notified  by  the  territorial  engineer  that  in  his  opinion  the 
public  interest  requires  such  action. 

Sec.  21.  In  any  suit  for  the  determination  of  a  right  to  the  use 
of  the  waters  of  any  stream  system,  all  those  whose  claim  to  the  use 
of  such  waters  are  of  record  and  all  other  claimants,  so  far  as  they 
can  be  ascertained,  with  reasonable  diligence,  shall  be  made  parties. 
When  any  such  suit  has  been  filed  the  court  shall,  by  its  order  duly 
entered,  direct  the  territorial  engineer  to  make  or  furnish  a  complete 
hydrographic  survey  of  such  stream  system  as  hereinbefore  provided, 
in  order  to  obtain  all  data  necessary  to  the  determination  of  the 
rights  involved.  The  costs  of  such  suit,  shall  include  the  fees  of  wit- 
nesses, the  taking  of  depositions  and  the  fees  of  the  officers  for 
serving  process  and  together  with  the  costs  on  behalf  of  the  Terri- 
tory, shall  be  charged  against  each  of  the  private  parties  thereto  in 
proportion  to  the  amount  of  water  right  allotted.  The  court  in  which 
any  suit  involving  the  adjudication  of  water  rights  may  be  properly 
brought  shall  have  exclusive  jurisdiction  to  hear  and  determine  all 
questions  necessary  for  the  adjudication  of  all  water  rights  within 
the  stream  system,  involved;  and  may  submit  any  question  of  fact 
arising  therein  to  a  jury  or  to  one  or  more  referees,  at  its  discretion: 
and  the  attorney  general  may  bring  suit  as  provided  in  Section  21  in 
any  court  having  jurisdiction  over  any  part  of  the  stream  system, 
which  shall  likewise  have  exclusive  jurisdiction  for  such  purposes. 

Sec.  22.  For  the  purpose  of  providing  the  money  required  for  any 
surveys  so  ordered  by  the  court,  there  is  hereby  appropriated  and 
set  apart  from  any  moneys  in  the  territorial  treasury,  except  the  fund 
for  the  payment  of  interest  on  the  bonded  debt,  the  sum  of  three 
thousand  dollars,  to  be  known  as  the  "Hydrographic   Survey  Fund," 


IRRlGA'ilON    LAWS.  11 

which  shall  be  a  permanent  fund  and  which  shall  be  used  only  for 
the  payment  of  the  expenses  of  such  surveys;  and  all  claims  for  serv- 
ices rendered,  expenses  incurred  or  materials  or  supplies  furnished 
under  the  direction  of  the  territorial  engineer  in  the  prosecution  of 
said  work  shall  be  approved  by  the  territorial  engineer  and  properly 
vouchered  and  filed  in  the  office  of  the  territorial  auditor,  who  shall, 
if  he  finds  the  same  to  have  been  incurred  in  accordance  with  law, 
audit  and  allow  such  claims  and  issue  his  warrants  against  the 
Hydrographic  Survey  Fund  on  the  territorial  treasurer  in  payment 
thereof.  ' 

Sec.  23.  Upon  the  adjudication  of  the  rights  to  the  use  of  the 
waters  of  a  stream  system,  a  certified  copy  of  the  decree  shall  be 
prepared  and  filed  in  the  office  of  the  territorial  engineer  by  the  clerk 
of  the  court,  at  the  cost  of  the  parties.  Such  decree  shall  in  every 
case  declare,  as  to  the  water  right  adjudged  to  each  party,  the  priority, 
amount,  purpose,  periods  and  place  of  use,  and  as  to  water  used 
for  irrigation,  except  as  otherwise  provided  in  this  act,  the  specific 
tracts  of  land  to  which  it  shall  be  appurtenant,  together  with  such 
other  conditions  as  may  be  necessary  to  define  the  right  and  its  prior- 
ity. 

Sec.  24.  Any  person,  association  or  corporation,  public  or  private, 
hereafter  intending  to  acquire  the  right  to  the  beneficial  use  'of  any 
waters,  shall,  before  commencing  any  construction  for  such  purposes, 
make  an  application  to  the  territorial  engineer  for  a  permit  to  appro- 
priate, in  the  form  required  by  the  rules  and  regulations  established 
by  him.  '  Such  rules  and  regulations  shall,  in  addition  to  providing 
the  form  and  manner  of  preparing  and  presenting  the  application, 
require  the  applicant  to  state  the  amount  of  water  and  period  or 
periods  of  annual  use,  and  all  other  data  necessary  for  the  proper 
description  and  limitation  of  the  right  applied  for,  together  with  such 
information,  maps,  field  notes,  plans  and  specifications  as  may  be 
necessary  to  show  the  method  and  practicability  of  the  construction 
and  the  ability  of  the  applicant  to  complete  the  same.  All  such  maps, 
field  notes,  plans  and  specifications  shall  be  made  from  actual  sur- 
veys and  measurements,  and  shall  be  duly  filed  in  the  office  of  tHe 
territorial  engineer  after  the  approval  of  the  application.  The  terri- 
torial engineer  may  require  additional  information  not  provided  for 
in  the  general  rules  and  regulations,  in  any  case  involving  the  diver- 
sion of  five  hundred  cubic  feet  of  water  per  second,  or  more,  or 
in  the  construction  of  a  dam  more  than  thirty  feet  high  from  the 
foundation.  The  owners  of  works  proposing  to  store  or  carry  water 
in  excess  of  their  needs  for  beneficial  use.  may  make  application  for 
such  excess,  and  shall  be  held  as  trustees  of  such  right  for  the  parties 
apnlving  the  water  to  a  beneficial  use;  and  shall  be  required  to  sell 
water  rights  for  a  reasonable  price  and  to  furnish  the  water  for  such 
parties  at  reasonable  rates  for  storage,  or  carriage,  or  both,  as  the 
case  may  be. 

Sec  25.  The  date  of  receipt  of  such  application  in  the  territorial 
engineer's  office  shall  be  endorsed  thereon  and  noted  in  his  record. 
If  the  application  is  defective  as  to  form,  or  unsatisfactory  as  to  feasi- 
bility or  safety  of  plan,  or  as  to  the  showing  of  ability  of  the  applicant 
to  carry  the  construction  to  completion,  it  shall  be  returned  with     a 


12  IRRIGATION    LAWS. 

statement  of  the  corrections,  amendments  or  changes  required,  with- 
in thirty  days  after  its  receipt,  and  sixty  days  shall  be  allowed  for  the 
refiling  thereof.  If  refiled,  corrected  as  required  within  such  time, 
the  application  shall,  upon  being  accepted,  take  priority  as  of  date 
of  its  original  filing,  subject  to  compliance  wjth  the  further  provisions 
of  the  law  and  the  regulations  thereunder.  Any  corrected  application 
filed  after  the  time  allowed  shall  be  treated  in  all  respects  as  an  origi- 
nal application  received  on  the  date  of  its  filing:  Provided,  That  the 
plans  of  the  construction  may  be  amended,  with  the  approval  of  the 
territorial  engineer,  at  any  time;  but  no  such  change  shall  authorize 
any  extension  of  time  for  construction  beyond  five  years  from  the 
date  of  the  permit,  except  as  provided  in  Section  35:  Provided,  fur- 
ther. That  a  change  in  the  proposed  point  of  diversion  of  water  from 
a  stream  shall  be  subject  to  the  approval  of  the  territorial  engineer, 
under  the  provisions  of  Section  45  hereof,  and  shall  not  be  allowed 
to  the  detriment  of  the  rights  of  others  having  valid  claims  to  the 
use  of  water  from  said  stream. 

Sec.  26.  Upon  the  filing  of  an  application  which  complies  with  the 
provisions  of  this  act  and  the  rules  and  regulations  established  there- 
under, accompanied  by  the  proper  fees,  the  territorial  engineer  shall 
instruct  the  applicant  to  publish  notice  thereof,  in  a  form  prescribed 
by  him,  in  some  newspaper  of  general  circulation  in  the  stream  sys- 
tem, once  a  week  for  two  consecutive  weeks.  Such  notice  shall  give 
all  essential  facts  as  to  the  proposed  appropriation;  among  them,  the 
places  of  appropriation  and  of  use,  amount  of  water,  the  purpose  for 
which  it  is  to  be  used,  name  and  address  of  applicant  and  the  time 
when  the  application  shall  be  taken  up  by  the  territorial  engineer  for 
consideration.  Proof  of  publication,  as  required,  shall  be  filed  with 
the  territorial  engineer  within  sixty  days  of  his  instructions  to  make 
publication.  In  case  of  failure  to  file  satisfactory  proof  of  publica- 
tion in  accordance  with  the  rules  and  regulations  applicable  thereto, 
within  the  time  required,  the  application  shall  thereafter  be  treated  as 
an  original  application  filed  on  the  date  of  receipt  of  proofs  of  publi- 
cation in  proper  form. 

Sec.  27.  Upon  the  receipt  of  the  proofs  of  publication,  accompanied 
by  the  proper  fees,  the  territorial  engineer  shall  determine  from  the 
evidence  presented  by  the  parties  interested,  from  such  surveys  of 
the  water  supply  as  may  be  available,  and  from  the  records,  whether 
there  is  unappropriated  water  available  for  the  benefit  of  the  appli- 
cant. If  so,  he  shall  endorse  his  approval  on  the  application,  which 
shall  thereupon  become  a  permit  to  appropriate  water,  and  shall 
state  in  such  approval  the  time  within  which  the  construction  shall 
be  completed,  not  exceeding  five  years  from  the  date  of  approval,  and 
the  time  within  which  the  water  shall  be  applied  to  a  beneficial  use, 
not  exceeding  four  years  in  addition  thereto :  Provided,  That  the  terri- 
torial engineer  may,  in  his  discretion,  approve  any  application  for  a 
less  amount  of  water,  or  may  vary  the  periods  of  annual  use.  and 
the  permit  to  appropriate  water  shall  be  regarded  as  limited  accord- 
ingly. 

Sec.  28.  If,  in  the  opinion  of  the  territorial  engineer,  there  is  no 
unappropriated  water  available,  he  shall  reject  such  application.  He 
shall   decline   to   order  the  publication   of  notice   of   any   application 


IRRIGATION   TAWS.  13 

which  does  not  comply  with  the  requirements  of  the  law  and  the 
rules  and  regulations  thereunder.  He  may  also  refuse  to  consider  or 
approve  an  application  or  to  order  the  publication  of  notice  thereof, 
if,  in  his  opinion,  the  approval  thereof  would  be  contrary  to  the  pub- 
lic interest. 

Sec.  29.  The  construction  of  the  works  shall  be  diligently  prosecut- 
ed to  completion,  and  if  one-fifth  of  the  work  shall  not  be  completed 
within  one-half  the  time  allowed,  as  determined  by  the  territorial  en- 
gineer, he  may  accept  and  approve,  as  herein  provided,  an  applica- 
tion for  the  use  of  all  or  any  of  the  waters  included  in  the  permit 
issued  to  the  prior  applicant  and  the  right  to  use  such  waters  under 
the  former  permit  shall  thereupon  be  forfeited:  Provided,  That  the 
territorial  engineer  shall  allow  an  extension  of  time  on  request  of 
the  prior  applicant,  equal  to  the  time  during  which  work  was  pre- 
vented by  the  operation  of  law  or  other  causes,  beyond  the  power  of 
the  said  applicant  to  control. 

Sec.  30.  On  the  date  set  for  the  completion  of  the  work,  or  prior 
thereto,  upon  notice  from  the  owner  that  the  work  has  been  com- 
pleted, the  territorial  engineer  shall  cause  the  work  to  be  inspected, 
after  due  notice  to  the  owner  of  the  permit.  Such  inspection  shall  be 
thorough  and  complete,  in  order  to  determine  the  actual  capacity  of 
the  works,  their  safety  and  efRciency.  If  not  properly  and  safely 
constructed,  the  territorial  engineer  may  require  the  necessary 
changes  to  be  made  within  a  reasonable  time,  to  be  fixed  by  him,  and 
shall  not  issue  his  certificate  of  completion  until  such  changes  are 
made.  If  at  or  before  the  expiration  of  said  time,  good  cause  is  shown 
why  said  change  could  not  be  made  within  said  time,  then  additional 
time  may  be  allowed  in  which  to  make  said  change.  Failure  to  make 
such  changes  shall  cause  the  postponement  of  the  priority  under  the 
permit  for  such  time  as  may  elapse  from  the  date  for  completing  such 
changes  until  made  to  the  satisfaction  of  the  territorial  engineer, 
and  applications  subsequent  in  time  shall  have  the  benefit  of  such 
postponement  of  priority;  Provided,  That  for  works  involving  the 
diversion  of  not  exceeding  twenty  cubic  feet  of  water  per  second  or 
a  dam  not  exceeding  ten  feet  in  the  extreme  height  from  the  founda- 
tion, the  territorial  engineer  may,  in  his  discretion,  accept  the  report 
of  the  inspection  by  a  reputable  hydraulic  engineer. 

Sec.  31.  When  the  works  are  found  in  satisfactory  condition,  after 
inspection,  the  territorial  engineer  shall  issue  his  certificate  of  con- 
struction, setting  forth  the  actual  capacity  of  the  works  and  such 
limitations  on  the  water  right  as  shall  be  warranted  by  the  condition 
of  the  works,  but  in  no  manner  extending  the  rights  described  m 
the  permit. 

Sec.  32.  If  the  territorial  engineer,  shall,  in  the  course  of  his  duties, 
find  that  any  works  used  for  the  storage,  diversion  or  carriage  of 
water  are  unsafe  and  a  menace  to  life  or  property,  he  shall  at  once 
notify  the  owner  or  agent,  specifying  the  changes  necessary  and 
allowing  a  reasonable  time  for  putting  the  works  in  safe  condition, 
lipon  the  request  of  any  party,  accompanied  by  the  estimated  cost 
of  inspection,  the  territorial  engineer  shall  cause  any  alleged  un- 
safe works  to  be  inspected.  If  they  shall  be  found  unsafe  by  the 
territorial    engineer,    the   money    deposited   by    such   party    shall    be- 


14  IRRIGATION   LAWS. 

refunded,  and  the  fees  for  inspection  shall  be  paid  by  the  owner  of 
such  works;  and,  if  not  paid  by  him  within  thirty  days  after  the 
decision  of  the  territorial  engineer,  shall  be  a  lien  against  the  prop- 
erty of  such  owner,  to  be  recovered  by  suit  instituted  by  the  district 
attorney  of  the  county  at  the  request  of  the  territorial  engineer.  The 
territorial  engineer,  may,  when  in  his  opinion  necessary,  inspect  any 
works  under  construction  for  the  storage,  diversion,  or  carriage  of 
water,  and  require  any  changes  necessary  to  secure  their  safety; 
and  the  fees  for  such  inspection  shall  be  a  lien  on  any  property  of 
the  owner  and  shall  be  subject  to  collection  as  provided  herein:  Pro- 
vided, That  any  works  constructed  by  the  United  States,  or  by  its 
duly  authorized  agencies,  shall  not  be  subject  to  such  inspection 
while  under  the  supervision  of  the  officers  of  the  United  States. 

Sec.  33.  The  use  of  works  for  the  storage,  diversion,  or  carriage 
of  water,  contrary  to  the  instructions  of  the  territorial  engineer,  at 
any  time  after  an  inspection  thereof  by  him,  and  receipt  of  notice 
from  him  that  the  same  are  unsafe  for  the  purpose  for  which  they  are 
used,  until  the  receipt  of  notice  from  him  that  in  his  opinion  they  have 
been  made  safe,  shall  be  a  misdemeanor,  and  it  shall  be  the  duty  of 
the  territorial  engineer  to  give  prompt  notice  to  the  district  attorney 
of  the  county  in  which  works  are  located  in  case  of  such  violation. 
The  district  attorney  shall  at  once  proceed  against  the  owner,  and 
all  parties  responsible  therefor. 

Sec,  34.  On  or  before  the  date  set  for  the  application  of  the  water 
to  a  beneficial  use,  the  territorial  engineer  shall  cause  the  works 
tr.  be  inspected,  after  due  notice  to  the  owner  of  the  permit.  Upon 
the  completion  of  such  inspection,  the  territorial  engineer  shall  issue 
a  license  to  appropriate  water  to  the  extent  and  under  the  condition 
of  the  actual  application  thereof  to  beneficial  use,  but  in  no  manner 
extending  the  rights  described  in  the  permit:  Provided,  That  the 
inspection  to  determine  the  amount  of  water  applied  to  beneficial 
use  shall  be  made  at  the  same  time  as  that  of  the  constructed  work, 
if  requested  by  the  owner,  and  if  such  action  is  deemed  proper  by  the 
territorial  engineer. 

Sec.  35.  The  territorial  engineer  shall  have  power  to  extend  the 
time  for  the  completion  of  construction,  or  for  application  to  benefi- 
cial use,  for  three  and  two  years,  respectively,  but  only  on  account  of 
delays  due  to  physical  and  engineering  difficulties  which  could  not 
have  been  reasonably  anticipated,  or  by  operation  of  law,  or  other 
causes,  beyond  the  power  of  the  applicant  to  avoid. 

Sec.  36.  Any  permit  or  license  to  appropriate  water  may  be  as- 
signed, but  no  such  assignment  shall  be  binding,  except  upon  the 
parties  thereto,  unless  filed  for  record  in  the  office  of  the  territorial 
engineer.  The  evidence  of  the  right  to  use  water  from  any  works 
constructed  by  the  United  States,  or  its  duly  authorized  agencies, 
shall  in  like  manner  be  filed  in  the  office  of  the  territorial  engineer, 
upon  assignment;  Provided,  That  no  right  to  appropriate  water,  ex- 
cept water  for  storage,  reservoirs,  for  irrigation  purposes  shall  be 
assigned,  or  the  ownership  thereof  in  any  wise  transformed,  apart 
from  the  land  to  which  it  is  appurtenant,  except  in  the  manner,  spe- 
cially provided  by  law:  Provided,  further.  That  the  transfer  of  title 
of  land  in  any  manner  whatsoever  shall  carry  with  it  all  rights  to 


IRRIGATION    LAWS.  15 

the  use  of  water  appurtenant  thereto  for  irrigation  purposes,  unless 
previously  alienated  in  the  manner  provide  by  law. 

Sec.  37.  In  any  suit  concerning  water  rights,  or  in  any  suit  or 
appeal  provided  for  in  this  act,  the  court  may  in  its  discretion  sub- 
mit any  question  of  fact  arising  therein  to  a  jury,  or  may  appoint 
a  referee  or  referees  to  take  testimony  and  report  upon  the  rights  of 
the  f)arties. 

Sec.  38.  The  attorney  general  and  the  district  attorney  of  the 
county  in  which  legal  questions  arise,  shall  be  the  legal  advisers  of 
the  territorial  engineer,  and  shall  perform  any  and  all  legal  duties 
necessary  in  connection  with  his  work,  without  other  compensation 
than  their  salaries  as  fixed  by  law,  except  when  otherwise  provided. 

Sec.  39.  The  owner  or  owners  of  any  works  for  the  storage,  diver- 
sion, or  carriage  of  water,  which  contain  water  in  excess  of  their 
needs  for  irrigation  or  other  beneficial  use  for  which  it  has  been 
appropriated,  shall  be  required  to  deliver  such  surplus  at  uniform 
rates  to  parties  entitled  to  use  the  same  under  like  conditions  and 
circumstances. 

Sec.  40.  Whenever  the  proper  officers  of  the  United  States,  author- 
ized by  law  to  construct  works  for  the  utilization  of  waters  within 
the  Territory,  shall  notify  the  territorial  engineer  that  the  United 
States  intends  to  utilize  certain  specified  waters,  the  waters  so  de- 
scribed, and  unappropriated,  and  not  covered  by  applications  or  affi- 
davits duly  filed  or  permits  as  required  by  law,  at  the  date  of  such 
notice,  shall  not  be  subject  to  a  further  appropriation  under  the  laws 
of  the  Territory  for  a  period  three  years  from  the  date  of  said  notice, 
within  which  time  the  proper  officers  of  the  United  States  shall  file 
plans  for  the  proposed  work  in  the  office  of  the  territorial  engineer 
for  his  information,  and  no  adverse  claim  to  the  use  of  water  re- 
quired in  connection  with  such  plans,  initiated  subsequent  to  the 
date  of  such  notice,  shall  be  recognized  under  the  laws  of  the  Terri- 
tory, except  as  to  such  amount  of  the  water  described  in  such  notice 
as  may  be  formally  released  in  writing  by  an  officer  of  the  United 
States,  thereunto  duly  authorized:  Provided,  That  in  case  of  failure 
to  file  plans  of  the  proposed  work  within  three  years,  as  herein  re- 
quired, the  waters  specified  in  the  notice  given  by  the  United  States 
tc  the  territorial  engineer  shall  become  public  waters,  subject  to  gen- 
eral appropriations. 

Sec.  41.  The  standard  of  measurement  of  the  flow  of  water  shall 
be  the  cubic  foot  per  second  of  time;  the  standard  of  measurement  of 
the  volume  of  water  shall  be  the  acre-foot,  being  the  amount  of  water 
upon  an  acre  covered  one  foot  deep,  equivalent  to  forty^three  thou- 
sand five  hundred  and  sixty  cubic  feet.  The  miner's  inch  shall  be 
regarded  as  one-fiftieth  of  a  cubic  foot  per  second  in  all  cases,  except 
when  some  other  equivalent  of  the  cubic  foot  per  second  has  been 
specifically  stated  by  contract,  or  has  been  established  by  actual 
measurement  or  use. 

Sec.  42.  When  the  party  entitled  to  the  use  of  water  fails  to  bene- 
ficially use  all  or  any  part  of  the  water  claimed  by  him,  for  which 
a  right  of  use  has  vested,  for  the  purpose  for  which  it  was  appro- 
priated or  adjudicated,  except  the  water  for  storage  reservoirs,  for  a 


16  IRRIGATION    LAWS. 

period  of  four  years,  such  unused  water  shall  revert  to  the  public  and 
shall  be  regarded  as  unappropriated  public  water. 

Sec.  43.  In  the  issuance  of  permits  to  appropriate  water  for  irriga- 
tion or  in  the  adjudication  of  the  rights  to  the  use  of  water  for  such 
purpose,  the  amount  allowed  shall  not  be  in  excess  of  the  rate  of  one 
cubic  foot  of  water  per  second  for  each  seventy  acres,  or  the  equiva- 
lent thereof,  delivered  on  the  land. 

Sec.  44.  All  water  used  in  this  Territory  for  irrigation  purposes, 
except  as  otherwise  provided  in  this  act,  shall  be  considered  appur- 
tenant to  the  land  upon  which  it  is  used,  and  the  right  to  use  the 
same  upon  said  land  shall  never  be  severed  from  the  land  without 
the  consent  of  the  owner  of  the  land;  but  by  and  with  the  consent  of 
the  owner  of  the  land,  all  or  any  part  of  said  right  may  "De  severed 
from  said  land,  and  simultaneously  transferred  for  other  purposes, 
without  losing  priority  of  right  theretofore  established,  if  such  changes 
can  be  made  without  detriment  to  existing  rights,  on  the  approval  of 
an  application  of  the  owner  to  the  territorial  engineer.  Before  the 
approval  of  such  application,  the  applicant  must  give  notice  thereof 
by  publication,  in  the  form  required  by  the  territorial  engineer,  once 
a  week  for  four  consecutive  weeks  in  a  newspaper  of  general  circu- 
lation in  the  stream  system  in  which  the  tract  or  tracts  of  land  may 
be  situated. 

Sec.  45.  An  appropriator  of  water  may  use  the  same  for  other 
than  the  purpose  for  which  it  was  appropriated,  or  may  change  the 
place  of  diversion,  storage,  or  use,  in  the  manner,  and  under  the 
conditions,  prescribed  in  Sections  25  and  44  of  this  acr. 

Sec.  46.  Every  ditch  owner  shall  when  requested  so  to  do  by  the 
territorial  engineer,  construct  and  maintain  a  substantial  headgate 
at  the  point  where  the  water  is  diverted,  and  shall  construct  a  meas- 
uring device,  of  a  design  approved  by  the  territorial  engineer,  at 
the  most  practicable  point  or  points  for  measuring,  and  apportioning 
the  water  as  determined  by  the  territorial  engineer.  The  territorial 
engineer  may  order  the  construction  of  such  device  by  the  ditch  owner, 
and  if  not  completed  within  twenty  days  thereafter,  refuse  to  deliver 
water  to  such  owner.  The  taking  of  the  water  by  such  ditch  owner, 
after  refusal  by  the  territorial  engineer  to  deliver  water  to  him, 
until  the  construction  of  such  devise  and  the  approval  thereof  by  the 
territorial  engineer,  shall  be  a  misdemeanor.  Such  devices  shall  be 
so  arranged  that  they  can  be  locked  in  place,  and  when  locked  by  the 
territorial  engineer  or  his  authorized  agent,  for  the  measurement  or 
apportionment  of  water,  it  shall  be  a  misdemeanor  for  any  authorized 
person  to  interfere  with,  disturb  or  change  the  same. 
.  Sec.  47.  Any  person,  association  or  corporation  interfering  with 
or  injuring  or  destroying  any  dam,  head-gate,  weir,  benchmark  or 
other  appliance  for  the  diversion,  carriage,  storage,  apportionment, 
oh  measurement  of  water,  or  for  any  hydrographic  surveys,  or  who 
shall  interfere  with  any  person  or  persons  engaged  in  the  discharge 
of  duties  connected  therewith,  shall  be  guilty  of  a  misdemeanor,  and 
shall  also  be  liable  for  the  injury  or  damage  resulting  from  such 
unlawful  act.  The  territorial  engineer  or  any  authorized  assistant 
shall  have  power  to  arrest  any  person  offending  against  the  provisions 
of  this  section,  and  deliver  him  to  the  nearest  peace  officer  of  the 


IRRIGATION    LAWS.  17 

county.  It  shall  be  the  duty  of  the  person  making  the  arrest  to  make 
complaint  at  once  before  the  court  having  jurisdiction  thereof.  The 
territorial  engineer,  the  water  masters,  and  their  authorized  assist- 
ants, and  agents  may  enter  upon  private  property  for  the  perform- 
ance of  their  respective  duties,  doing  no  unnecessary  injury  thereto. 

Sec.  48.  The  unauthorized  use  of  water  to  which  another  person 
is  entitled,  or  the  wilful  waste  of  water  to  the  detriment  of  another, 
or  the  public  shall  be  a  misdemeanor.  It  shall  also  be  misdemeanor 
to  begin  to  carry  on  any  construction  of  works  for  storing  or  carrying 
water  until  after  the  issuance  of  permit  to  appropriate  such  waters 
except  in  the  case  of  construction  carried  on  under  authority  of  the 
United  States. 

Sec.  49.  The  owner  or  owners  of  any  ditch,  canal,  or  other  struc- 
ture for  carrying  or  storing  water,  shall  construct  a  substantial 
bridge  where  the  same  crosses  any  public  road,  with  a  passageway  not 
less  than  fourteen  feet  wide;  or  reconstruct  the  road  in  a  substan- 
tial manner  and  in  a  convenient  location  for  public  travel.  Any  vio- 
lation of  the  provisions  of  this  section  shall  be  a  misdemeanor.  The 
county  commissioners  shall  be  authorized  to  construct  such  bridge 
or  road,  if  not  built  by  the  owner  of  the  work  within  three  days 
after  the  obstruction  of  the  road,  and  may  recover  the  expense  thereof 
and  costs  in  a  civil  suit,  unless  the  same  shall  be  paid  by  the 'owner 
of  the  works  within  ten  days  after  demand  therefor.  The  county 
commissioners  may  make  reasonable  requirements  as  to  the  size  and 
character  of  such  bridges  along  public  highways,  or  for  the  necessary 
reconstruction  of  roads,  and  upon  failure  to  comply  therewith,  may 
do  the  necessary  work  and  collect  the  expense  thereof  and  costs  as 
hereinbefore  provided.  After  the  construction  of  such  bridge  or  road 
as  part  of  a  public  highway,  the  same  shall  be  maintained  by  the 
county  commissioners.  The  owner  or  owners  of  any  ditch,  canal  or 
other  structure  for  carrying  or  storing  water  shall  keep  the  same 
in  good  repair  at  the  crossing  of  any  highway  or  publicly  traveled 
road  or  at  other  places  where  the  water  therefrom  may  flow  over  or 
in  any  wise  injure  any  road  or  highway;  and  the  commissioners  shall 
require  necessary  repairs  for  the  protection  of  the  roads  to  be 
made  or  shall  make  them  at  the  expense  of  the  owners  of  such  works 
and  collect  the  expense  thereof,  and  costs  as  herein  provided. 

Sec.  50.  Whenever  any  appropriator  -of  water  has  the  right-of-way 
for  the  storage,  diversion,  or  carriage  of  water,  it  shall  be  unlawful 
to  place  or  maintain  any  obstruction  that  shall  interfere  with  the 
use  of  the  works,  or  prevent  convenient  access  thereto.  Any  viola- 
tions of  this  section  shall  be  a  misdemeanor. 

Sec,  51.  All  violations  of  the  provisions  of  this  act,  declared  herein 
to  be  misdemeanors,  shall  be  punished  by  a  fine  not  exceeding  one 
hundred  dollars  ($100.00)  nor  less  than  ten  dollars  ($10.00),  or  by 
imprisonment  in  the  county  jail  not  exceeding  six  months,  or  by  both 
such  fine  and  imprisonment,  and  any  justice  court  of  the  county  in 
which  such  misdemeanor  has  been  committed  shall  have  jurisdiction 
thereof. 

Sec,  52,  All  liens  on  land,  provided  for  in  this  act  shall  be  superior 
in  right  to  all  mortg:ae:es  or  othei   incumbrances  placed  upon  the  land 


18  IRRIGATION   LAWS. 

and  the  water  appurtenant  thereto  or  used  in  connection  therewith, 
after  the  passage  of  this  act. 

Sec.  53.  In  the  case  of  the  seepage  of  water  from  any  constructed 
works,  the  owner  of  such  works  shall  have  the  first  right  to  the  use 
thereof  upon  filing  an  application  with  the  territorial  engineer  as  in 
the  case  of  an  original  appropriation,  but  if  such  owner  shall  not 
file  said  application  within  tDne  year  after  the  completion  of  such 
works,  or  the  appearance  upon  the  surface  of  such  seepage  water,  an>' 
party  desiring  to  use  the  same  shall  make  application  to  the  territorial 
engineer,  as  in  the  case  of  unappropriated  water,  and  such  party  shall 
pay  to  the  owner  of  such  works  reasonable  charge  for  the  storage 
or  carriage  of  such  water  in  such  works:  Provided,  That  the  appear- 
ance of  such  seepage  water  can  be  traced  beyond  reasonable  doubt 
to  the  storage  or  carriage  of  water  in  such  works. 

Sec.  54.  There  is  hereby  granted,  over  all  the  lands  now  or  here- 
after belonging  to  the  Territory,  a  right-of-way  for  ditches  or  canals 
and  for  tunnels,  tramways,  and  telephone  and  electrical  transmission 
lines,  constructed  by  authority  of  the  United  States.  All  conveyances 
of  territorial  lands  hereafter  made  shall  contain  a  reservation  of  such 
right-of-way  for  such  ditches,  canals  and  other  works  constructed 
commenced,  or  for  which  applications  are  on  file  at  the  date  of  such 
conveyance. 

Sec.  55.  No  lands  belonging  to  the  Territory,  within  the  areas  to 
be  irrigated  from  works  constructed  or  controlled  by  the  United 
States,  or  its  duly  authorized  agencies,  shall  hereafter  be  sold  except 
in  conformity  with  the  classification  of  farm  units  by  the  United 
States,  and  the  title  to  such  lands  shall  not  pass  from  the  Territory 
until  the  applicant  therefor  shall  have  fully  complied  with  the  provi- 
sions of  the  laws  of  the  United  States,  and  the  regulations  thereun- 
der concerning  the  acquisition  of  the  right  to  use  water  from  such 
works  and  shall  produce  the  evidence  thereof  duly  issued.  After  the 
withdrawal  of  lands  by  the  United  States  for  any  irrigation  project, 
no  application  for  the  purchase  of  territorial  lands  within  the  limits 
of  such  withdrawal  shall  be  accepted,  except  upon  the  conditions 
prescribed  in  this  section.  Any  territorial  lands  needed  by  the  United 
States  for  irrigation  works  shall  be  conveyed  to  the  United  States 
without  charge. 

Sec.  56.  There  is  hereby  appropriated  out  of  any  moneys  in  thp 
territorial  treasury,  except  the  fund  for  the  payment  of  interest  on 
the  bonded  debt,  and  exclusive  of  the  Hydrographic  Survey  Fi,incl 
hereinbefore  provided,  the  sum  of  $3,500.00  annually,  or  so  much 
thereof  as  may  be  necessary,  for  the  payment  of  the  salaries  and 
expenses  of  the  territorial  engineer,  and  the  services  of  assistants 
and  expenses  of  the  office  and  department  of  the  territorial  engineer, 
as  provided  by  this  act.  All  claims  for  services  rendered  and  ex- 
penses incurred  and  m.aterials  and  supplies  furnished  under  the  pro- 
visions of  this  act  shall  be  audited  by  the  territorial  auditor  for  pay- 
ment and  be  paid  by  the  territorial  treasurer  in  accordance  with  th«^ 
provisions  of  the  general  statutes  as  to  the  auditing  of  claims  against 
the  Territory. 

Sec.  57.  In  all  cases  where  local  or  community  customs,  rules 
and  regulations  have  been  adopted  and  are  now  in  force  and  in  all 


lURIGATION   LAWS.  19 

cases  where  such  rules  and  regulations  may  be  adopted  from  time 
to  time  by  the  majority  of  the  users  from,  a  common  canal,  lateral, 
or  irrigation  system,  and  have  for  their  object  the  economical  use 
of  water  and  are  not  detrimental  to  the  public  welfare,  such  rules  and 
regulations  shall  govern  the  distribution  of  water  from  such  ditches, 
laterals  and  irrigation  systems  to  the  persons  entitled  to  water 
therefrom,  and  such  customs,  rules  and  regulations  shall  not  be  mo- 
lested or  changed,  unless  so  desired  by  the  persons  interested  and 
using  said  custom  or  customs,  but  nothing  in  this  section  shall  be 
taken  to  impair  the  authority  of  the  territorial  engineer  and  water 
master  to  regulate  the  distribution  of  water  from  the  various  stream 
systems  of  the  Territory  to  the  ditches  and  irrigation  systems  en- 
titled to  water  therefrom  under  the  provisions  of  this  act. 

Sec.  58.  No  water  master  shall  be  appointed  under  this  act,  until 
the  prior  rights  to  the  use  of  water  have  been  determined  in  one  or 
more  stream  systems  in  this  Territory  under  the  provisions  of  this  act. 

Sec.  59.  Nothing  contained  in  this  act  shall  be  construed  to  impair 
existing,  vested  rights  or  the  rights  and  priorities  of  any  person,  firm, 
corporation  or  association,  who  may  have  comm.enced  the  construction 
of  reservoirs,  canals,  pipe  lines  or  other  works,  or  who  have  filed 
affidavits,  applications  or  notices  thereof  for  the  purpose  of  appro- 
priating for  beneficial  use,  any  waters  as  defined  in  Section  1  'of  this 
act,  in  accordance  with  the  laws  of  the  Territory  of  New  Mexico,  prior 
to  the  passage  of  this  act;  Provided,  however,  That  all  such  reser- 
voirs, canals,  pipe  lines  or  other  works  and  the  rights  of  the  owners 
thereof  shall  be  subject  vto  regulation,  adjudication  and  forfeiture  for 
abandonment,  as  provided  in  this   act. 

Sec.  60.  Whenever  the  owner  of  a  ditch,  canals  pipe  line,  reser- 
voir, or  other  works  shall  turn  or  deliver  water  from  one  stream 
or  drainage  into  another  stream  or  drainage,  such  owner  may  take 
and  use  the  same  quantity  of  water,  less  a  reasonable  deduction  for 
evaporation  and  seepage  to  be  determined  by  the  territorial  engineer, 
and  such  owner  may  be  required  by  the  territorial*  engineer  to  con- 
struct and  maintain  suitable  measuring  fiumes  or  devices  at  the  point 
or  points  where  said  water  leaves  its  natural  stream  or  water  shed, 
or  is  turned  into  another  stream  or  water  shed.  Where  the  rights 
of  others  are  not  injured  thereby,  it  shall  be  lawful  for  the  owner 
of  any  reservoir,  canal,  or  other  work,  to  deliver  water  into  any 
ditch,  stream,  or  water  course,  to  supply,  appropriations  therefrom 
and  to  take  in  exchange  therefor,  either  above  or  below  such  point 
of  delivery,  a  quantity  of  water  equivalent  to  that  so  delivered,  less 
a  proper  deduction  for  evaporation  and  seepage  to  be  determined 
by  the  territorial  engineer;  Provided,  Suc.h  owner  shall,  under  the 
direction  of  the  territorial  engineer,  construct  and  maintain  suitable 
m.easuring  devices  at  the  points  of  delivery  and  diversion. 

'Sec.  61.  Whenever  in  accordance  with  the  provisions  of  this  act, 
any  person,  firm,  association  or  corporation  shall  enlarge  an  existing 
canal,  acequia,  reservoir,  or  other  works,  in  order  to  use  the  same 
in  common  with  the  former  owner,  such  person,  firm,  association 
or  corporation,  shall  have  and  enjoy  the  right  to  the  use  and  benefit 
of  the  quantity  of  water  added  to  the  capacity  of  such  structure  or 
work  by  such  enlargement.    Where  two  or  more  owners  are  using  or 


20  lEUlIGATION    LAWS. 

have  the  right  to  use  the  same  canal,  acequia,  reservoir  or  other 
water  works,  and  one  or  more  of  such  owners  shall  fail  or  neglect  to 
do  his  or  their  proper  share  of  the  work  or  to  furnish  and  pay  for 
his  or  their  proper  share  of  the  materials  necessary  for  the  mainten- 
ance, repair  and  operation  thereof,  anyone  or  more  of  such  owners 
may,  after  ten  days  notice,  proceed  to  perform  such  work,  and  fur- 
nish such  materials,  and  may  recover  from  each  delinquent  owner 
his  proportionate  share  of  the  cost  of  such  work  and  materials  by  a 
suit  in  any  court  of  competent  jurisdiction,  and  shall  have  a  lien  there- 
for upon  such  delinquent  owner's  share  in  said  canal,  acequia,  reser- 
voir or  other  works  enforceable  in  the  same  manner  as  provided  by 
law  for  the  enforcement  of  mechanic's  liens. 

Sec.  62.  There  is  hereby  created  a  board  of  water  commissioners 
to  consist  of  three  members  who  shall  be  appointed  by  the  Governor  of 
the  Territory  of  New  Mexico,  by  and  with  the  advice  and  consent 
of  the  Legislative  Council,  from  different  sections  of  the  Territory, 
and  who  shall  hold  office  for  four  years,  or  until  their  successors 
shall  be  appointed  and  qualified.  Each  member  of  such  board  before 
assuming  the  duties  of  his  office  shall  take  the  oath  as  prescribed  by 
law  for  territorial  officials,  conditioned  upon  the  faithful  discharge 
of  his  duties.  Such  board  shall,  if  there  be  pending  before  it  busi- 
ness so  requiring,  meet  at  the  office  of  the  territorial  engineer  on 
the  first  Monday  of  May,  August,  November  and  February  of  each 
year,  and  shall  hold  special  mee^^^^of^^j  ^  ^q  p^^^^^  jaAanaqAi  sSnp 
of  the  board,  either  at  the  Territorial  Capital  or  elsewhere  as  the 
business   of   the   board    may    require. 

Sec.  63.  It  shall  be  the  duty  of  said  board  to  hear  and  determine 
appeals  from  the  actions  and  decisions  of  the  territorial  engineer  in 
all  matters  affecting  the  rights,  priorities  and  interests  of  water  users 
and  owners  of,  or  parties  desiring  to  construct  canals,  reservoirs,  or 
other  works  for  the  conveyance,  storage  or  appropriation  of  waters  in 
this  Territory.  Any  applicant  or  other  party  dissatisfied  with  any 
decision,  act  or  'refusal  to  act  of  the  territorial  engineer  may  take 
an  appeal  to  said  board;  Provided,  Notice  of  such  appeal  shall  be 
served  upon  the  territorial  engineer  and  all  parties  interested  within 
thirty  days  after  notice  of  such  decision,  act  or  refusal  to  act,  and 
unless  such  appeal  is  taken  within  said  time,  the  action  of  the  terri- 
torial engineer  shall  be  final  and  conclusive.  Notice  of  such  appeal 
may  be  served  in  the  same  manner  as  summons  in  actions  brought 
before  the  district  courts  of  the  Territory,  or  by  publication  in  some 
newspaper  printed  in  the  country  or  water  district  wherein  the  work 
or  point  of  desired  appropriation  in  question  is  situated,  once  a  week 
for  four  consecutive  weeks,  the  last  publication  to  be  at  least  twenty 
days  prior  to  the  date  when  such  appeal  may  be  heard. 

Sec.  64.  It  shall  be  the  duty  of  the  territorial  engineer,  upon  notice 
being  filed  in  his  office  of  such  appeal  to  forthwith  transmit  or  pro- 
duce before  said  board  the  papers,  maps,  plats,  field  notes  and  other 
data  in  his  possession  affecting  the  matter  in  controversy,  or  certi- 
fied copies  thereof,  which  copies  shall  be  admitted  in  evidence  by 
said  board  or  by  any  court  in  this  Territory  as  of  equal  validity  with 
the  originals. 

Sec.  65.     The  decision  of  said  board,  upon  any  such  appeal,  shall  be 


IRRIGATION    LAWS.  21 

filed  in  the  office  of  the  territorial  engineer,  who  shall  thereafter 
act  in  accordance  with  such  decision.  The  decision  of  said  board  shall 
be  final,  subject  to  appeal  to  the  district  court  of  the  district  wherein 
such  work,  or  point  of  desired  appropriation,  is  situated,  to  be  taken 
within  sixty  days  from  the  date  of  such  decision,  upon  notice  served 
in  the  manner  and  within  the  time  in  this  act  provided  for  service 
of  notice  of  appeal  from  decisions  or  acts  of  the  territorial  engineer, 
and  upon  filing  a  cost  bond  in  such  sum  as  the  board  may  fix,  with  two 
or  more  sureties  to  be  approved  by  the  clerk  of  said  board.  If  for  any 
good  reason  said  board  should  fail  to  meet  and  act  upon  any  such 
appeal  within  ninety  days  after  the  filing  of  notice  thereof  with  the 
clerk  of  said  board,  the  case  may  be  taken  before  the  district  court 
of  the  district  wherein  the  work  done  or  point  of  desired  appropria-' 
tion  in  controversy  is  situated  upon  petition  and  by  writ  of  certiorari 
directed  to  said  board  and  served  upon  the  clerk  thereof;  Provided, 
That  notice  of  the  filing  of  such  petition  and  the  application  for  said 
■writ  shall  be  served  upon  all  parties  interested  in  the  manner  herein 
provided  for  service  of  notice  of  appeals  to  said  board. 

Sec.  66.  In  case  of  such  appeal  to  the  district  court  it  shall  be  the 
duty  of  said  board  to  certify  to  said  court  the  record  of  all  proceedings 
with  reference  to  the  matter  in  controversy  together  with  all  papers, 
maps,  plats,  field  notes,  and  other  documents  and  exhibits  filed  with 
said  board.  The  costs  in  such  cases  to  be  taxed  the  same  as  costs  in 
cases  in  the  district  court  and  at  the  same  rates  and  that  the  same 
shall  be  paid  in  accordance  with  the  judgment  of  the  board  or  court 
in  each  case.  All  cases  removed  into  the  district  court  in  pursuance 
of  this  section  shall  be  tried  de  novo,  except  that  evidence  which 
may  have  been  taken  in  the  hearing  before  the  territorial  engineer  and 
said  board  and  transcribed,  may  be  considered  as  original  evidence 
in  the  district  court,  and  the  court  shall  allow  all  amendments  which 
may  be  necessary  in  furtherance  of  justice  in  all  cases,  appealed 
i)y  petition  or  certiorari,  or  otherwise,  and  may  submit  any  question 
of  fact  arising  therein  to  a  jury,  or  to  one  or  more  referees  at  its  dis- 
cretion. 

Sec.  67.  Said  board  m„ay  adopt  and  use  a  seal  and  ra.ake  rules  for 
the  hearing  and  determination  of  appeals  not  inconsistent  with  law 
and  the  provisions  of  this  act.  Any  member  of  said  board  or  the 
clerk  thereof,  or  any  referee  appointed  by  said  board  to  take  testi- 
mony may  administer  oaths  to  witnesses;  and  the  board  or  any  such 
referee  shall  have  the  power  to  order  or  summon  witnesses  to  appear 
and  testify  before  it  or  such  referee,  and  to  produce  books,  papers 
and  documents.  Any  person,  or  the  officer  or  agent  of  any  corporation 
who  shall  fail  or  refuse  to  appear  and  testify  or  to  produce  the  papers 
and  documents  as  required  by  any  summons  or  order  of  said  board  or 
referee  appointed  by  said  board  to  take  testimony,  shall  be  guilty  of 
a  misdemeanor  and  upon  conviction  thereof  before  any  district  court 
of  this  Territory,  shall  be  fined  in  a  sum  not  less  than  fifty  nor  ex- 
ceeding one  hundred  dollars,  or  by  imprisonment  in  the  county  jail 
not  to  exceed  three  months,  or  by  both  such  fine  and  imprisonment, 
in  the  discretion  of  the  court. 

See.  68.  Each  member  of  said  board  shall  receive  five  dollars  per, 
day  while  in  attendance  at  meetings  thereof,  and  actual  traveling  ex- 


22  IRRIGATION   LAWS. 

penses  while  in  the  discharge  of  his  duties;  Provided,  That  no  member 
shall  receive  pay  for  more  than  sixty  days'  service  in  any  one  year. 

Sec.  69.  The  board  shall  appoint  a  clerk,  who  may  be  also  a  clerk 
or  assistant  to  any  other  territorial  officer,  and  who  shall  receive  a 
salary  not  to  exceed  fifty  dollars  per  month  for  his  services  as  clerk 
to  said  board.  The  board  may  purchase  necessary  stationery  and 
office  supplies  to  an  amount  not  to  exceed  one  hundred  dollars  in  any 
one  year.  The  salary  of  the  clerk,  the  per  diem  of  the  members  of 
the  board  and  the  expenses  of  the  members  and  office  as  herein 
provided,  shall  be  paid  at  the  time  and  in  the  same  manner  as  those 
of  other  officers  of  the  Territory. 

Sec.  70.  There  is  hereby  granted  upon  and  over  all  the  lands  now 
•or  hereafter  belonging  to  the  Territory  of  New  Mexico,  a  right  of  way 
for  canals,  acequias,  storage  reservoirs  or  other  water  works,  to  any 
person,  firm,  association  or  corporation,  desiring  to  construct  and 
use  the  same,  and  who  shall  comply  with  the  provisions  of  this  act. 
Any  person,  firm,  association,  or  corporation,  desiring  to  construct 
and  use  a  canal,  acequia,  reservoir,  or  other  water  works,  upon  or 
over  lands  belonging  to  the  Territory  of  New  Mexico,  shall  file  with 
the  territorial  engineer  an  application  as  in  the  case  of  other  appro- 
priations, together  with  a  map  or  plat  describing  such  lands  and  if, 
upon  investigation,  the  territorial  engineer  shall  determine  that  such 
application  is  made  in  good  faith,  and  that  the  party  making  the  same 
is  able  to  construct,  maintain,  and  beneficially  use  the  canal,  acequia, 
reservoir,  or  other  water  works  described  in  the  application,  he  shall 
grant  a  permit  in  such  form  as  he  may  adopt,  giving  to  the  at)plicant 
the  right  to  use  the  lands  described  for  such  purposes;  such  permit 
may  be  assigned,  and  shall  be  subject  to  forfeiture  for  abandonment 
as  in  the  case  of  other  appropriations  mentioned  in  this  act. 

Sec.  71.  All  permits,  decrees  and  documents  granting,  defining  or 
limiting  water  rights  and  rights  of  owners  of  canals,  reservoirs  and 
works  for  conducting,  storing  or  appropriating  water  in  this  Territory 
shall  be  recorded  in  the  office  of  the  probate  clerk  and  ex-officio  re- 
corder of  the  county  in  which  the  property,  canal,  reservoir  or  work 
is  situated.  When  so  recorded,  copies  of  such  permits,  decrees  and 
docum.ents  certified  by  the  county  recorder  shall  be  admitted  in  evi- 
dence in  any  court  of  the  Territory  as  of  equal  validity  with  the 
original. 

Sec.  72.  It  shall  hereafter  be  unlawful  for  any  person,  company  or 
corporation  to  divert  the  waters  of  any  public  stream  in  New  Mexico 
for  use  for  reservoirs  or  other  purposes  in  a  valley  other  than  that 
of  any  such  stream,  to  the  impairment  of  valid  and  subsisting  prior 
appropriations  of  such  waters. 

Any  violator  of  this  section,  shall'  upon  conviction  be  punished  by 
a  fine  of  not.  less  than  one  hundred  dollars  ($100)  nor  more  than 
five  hundred  dollars  ($500)  or  imprisonment  in  the  county  jail  for 
not  less  than  one  month  nor  more  than  three  m'onths,  or  both,  in 
the  discretion   of  the  court. 

Sec.  73.  An  act  of  the  36th  Legislative  Assembly  of  the  Territory 
of  New  Mexico,  entitled  "An  Act  creating  the  office  of  Territorial  Irri- 
gation Engineer,  to  promote  irrigation  development  and  conserve  the 
waters  of  New  Mexico  for  the  irrigation  of  lands  and  for  other  pur- 


IRRIGATION    LAWS.  23 

poses,"  approved  March  16,  1905,  and  all  other  acts  and  parts  of  acts 
in  conflict  with  this  act,  are  hereby  repealed,  and  this  act  shall  be 
in  full  force  and  effect  from  and  after  its  passage. 


CHAPTER  54. 


An  Act  to  Amend  an  Act,  Entitled  "An  Act  to  Conserve  and  Regulate 
the  Use  and  Distribution  of  the  Waters  of  New  Mexico;  to  Create 
the  Office  of  Territorial  Engineer;  to  Create  a  Board  of  Water 
Commissioners,  and  for  Other  Purposes.  Approved  March  19,  1907." 
H.  B.  No.  205;   Approved   March  17,  1909. 

Be  it  Enacted  by  the  Legislative  Assembly  of  the  Territory  of  New 
Mexico: 

Section  1.  Amend  Chapter  49,  of  the  Session  Laws  of  1907,  by  add- 
ing the  following  additional  section: 

That  this  act  shall  not  be  construed  to  apply  to  stockmen,  or  stock 
owners  who  may  build  or  construct  water  tanks  or  wells  for  watering 
stock. 

Sec.  2.  All  acts  and  parts  of  acts  in  conflict  with  this  act  are  hereby 
repealed. 

Sec.  3.  This  act  shall  have  full  force  and  effect  from  and  after  its 
passage. 


CHAPTER    128. 


An  Act  Relating  to  Water   Rights.   H.  S.  C.   B.   No.  151    and    H.   B.   No. 
285;   Approved   March  18,  1909. 

Be   it  enacted    by  the   Legislative  Assembly   of  the  Territory  of    New 
Mexico: 

Sec.  1.  To  the  end  that  the  waters  of  the  several  stream  systems 
of  the  Territory  may  be  conserved  and  utilized  so  as  to  prevent  ero- 
sion, waste  and  damage  caused  by  torrential  floods,  and  in  order  that 
the  benefits  of  the  use  of  such  waters  may  be  distributed  among  the 
inhabitants  and  land  owners  of  the  country  along  said  streams  as 
equitably  as  possible  without  interfering  with  vested  rights,  the 
natural  right  of  the  people  living  in  the  upper  valleys  of  the  several 
stream  systems  to  impound  and  utilize  a  reasonable  share  of  the 
waters  which  are  precipitated  upon  and  have  their  source  in  such 
valleys  and  superadjacent  mountains,  is  hereby  recognized,  the  exer- 
cise of  such  right,  however,  to  be  subject  to  the  provisions  of  Chapter 


24  IRRIGATION   LAWS. 

49  of  the  Acts  of  the  Thirty-seventh  Legislative  Assembly  of  Xew 
Mexico. 

Sec.  2.  In  cases  of  applications  for  permits  to  impound  and  utilize 
waters  of  any  stream  or  flood  waters  under  conditions  which  would 
cause  or  permit  a  considerable  return  flow  of  such  waters  into  their 
natural  channel  above  the  diversion  or  storage  works  of  other  appro- 
priators  or  of  others  using  or  who  have  acquired  the  right  to  use  water 
from  said  stream  or  stream  system,  the  Territorial  Engineer  is  author- 
ized to  approve  such  applications  whenever  such  storage  or  use  of 
water  by  the  upper  owner  or  owners  would  not  result  in  depriving  such 
lower  users  or  appropriators  of  water  to  the  extent  of  their  reasonable 
requirements. 

Sec.  3.  There  shall  be  the  same  right  of  appeal  from  the  action  of 
the  Territorial  Engineer  in  approving  or  rejecting  any  such  applica- 
tion as  is  provided  in  said  Chapter  49  of  the  Acts  of  the  37th  Legisla- 
tive Assembly  of  New  Mexico  for  the  year  1907,  and  nothing  in  this 
act  shall  be  construed  to  impair  prior  vested  rights  or  the  rights  of 
prior  appropriators  of  public  waters  of  this  Territory,  or  the  rights 
of  those  who  have  filed  or  may  file  applications  to  appropriate  public 
waters  in  compliance  with  existing  laws  of  the  Territory  of  New 
Mexico. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force  from  and  after 
its  passage. 


CHAPTER  129. 


An  Act  to  Amend  Section  18  of  Chapter  49  of  the  Laws  of  the  37th 
Legislative  Assembly  of  the  Territory  of  New  Mexico.  H.  B.  No. 
40;   Approved   March  18,  1909. 

Be  it  enacted  by  the  Legislative  Assembly  of  the  Territory  of  New 
Mexico: 

-Section  1.  That  Section  18  of  Chapter  49  of  the  Laws  of  the  37th 
Legislative  Assem.bly  of  the  Territory  of  New  Mexico  be  and  the  same 
is  hereby  amended  to  read  as  follows: 

"Sec.  18.  Whenever  requested  so  to  do  by  any  of  the  Boards  of 
Commissioners  of  any  of  the  counties  of  the  Territory,  it  is  hereby 
made  the  duty  of  the  Territorial  Engineer,  either  hiAiself,  or  by  an 
authorized  assistant  engineer,  to  co-operate  with  the  said  County 
Commissioners,  in  the  engineering  work  required  to  lay  out,  establish 
and  construct  any  drain  to  be  used  by  any  county  or  counties  or  por- 
tions of  the  same,  for  the  purpose  of  diverting  flood  waters,  lakes, 
water  courses,  and  in  general  to  aid  and  assist  the  counties  of  this 
Territory  or  their  authorized  officers  in  making  preliminary  surveys 
and  establishing  systems  of  drainage,  or  any  other  engineering  work; 
and  whenever  the  Board  of  County  Commissioners  of  any  such  county 
shall  by  order  determine  to  lay  out,  establish  and  construct  any  drain 


IRRIGATION   LAWS.  25 

to  be  used  by  any  county  or  counties,  or  portions  of  the  same,  for 
the  purpose  of  diverting  flood  waters,  lakes  or  water  courses,  or  to 
establish  systems  of  drainage,  which  shall  require  that  private  prop- 
erty be  taken  or  damaged,  the  county  may  exercise  the  right  of  emi- 
nent domain  to  take  and  acquire  real  or  personal  property,  right-of- 
way,  and  privilege  within  or  without  its  corporate  limits,  necessary 
for  its  corporate  purposes,  in  the  manner  provided  by  law  for  the 
condemnation  and  taking  of  private  property  in  the  Territory  of  New 
Mexico  for  railroad,  telegraph,  telephone  and  other  public  uses  and 
purposes.  The  engineers  and  surveyors  of  the  Territory  and  of  the 
county  shall  have  the  right  to  enter  upon  the  lands  of  private  persons 
and  of  private  and  public  corporations  for  the  purpose  of  making 
hydrographic  surveys  and  examinations  and  surveys  necessary  for 
selecting  and  locating  suitable  sites  and  routes  for  any  drain  or  drain- 
age system,  subject  to  responsibility  for  any  damage  done  to  such 
property  in  making  such  surveys  and  examinations." 

Sec.  2.     All  acts  and  parts  of  acts  in  conflict  herewith  are  hereby 
repealed  and  this  act  shall  be  in  force  from  and  after  its  passage. 


CHAPTER  130. 


An    Act    Concerning    Claims   to    Rights   or    Priorities   for   the    Use   of 
Waters.     H.  S.  C.  B.  No.  118;  Approved  March  18,  1909. 

Be   It  enacted   by  the   Legislative  Assembly  of  the  Territory   of   New 
Mexico: 

Section  1.  Any  person,  firm  or  corporation  claiming  any  rights  or 
priorities  to  the  use  of  water  for  any  beneficial  purpose  or  purposes 
in  the  Territory  of  New  Mexico,  initiated  prior  to  the  approval  of  an 
act,  entitled  "An  Act  to  Conserve  and  Regulate  the  Use  and  Distri- 
bution of  the  Waters  of  New  Mexico;  to  Create  the  Office  of  Terri- 
torial Engineer;  to  Create  a  Board  of  Water  Commissioners  and  for 
other  purposes,"  approved  March  19,  1907,  the  same  being  Chapter 
49  of  the  Acts  of  the  37th  Legislative  Assembly  of  New  Mexico,  who 
had  prior  to  said  March  19,  1907,  filed  the  sworn  statement  required 
by  Section  493  of  the  Compiled  Laws  of  1897,  and  whose  work  of 
perfecting  said  rights  or  priorities  was  in  progress  by  excavations, 
surveys  or  construction,  prior  to  March  19,  1907,  and  who  had  also 
prior  to  said  date,  acquired  by  purchase  the  rights  of  any  person  or 
corporation  that  had  expended  more  than  forty  thousand  dollars  in 
necessary  surveys  and  construction  of  irrigation  works  within  the 
same  drainage  area,  shall  have  a  reasonable  time  as  determined  by 
the  Territorial  Engineer  within  which  to  complete  all  necessary  sur- 
veys, maps,  plans,  drawings  and  specifications  and  after  the  approval 
thereof  by  the  Territorial  Engineer  shall  have  the  benefit  of  the 
extensions  of  time  provided  by  said  Chapter  49  of  the  Laws  of  1907 
in  which  to  complete  construction  and  apply  the  water  to  a  beneficial 
use. 

Sec.  2.    This  act  shall  take  effect  from  and  after  its  passage. 


